Intemperate Internet Commenting By New Orleans Prosecutors Has Far-Reaching And Terrible Consequences

Arguably the biggest legal news of the week for non-lawyer types happened on Tuesday when a federal judge tossed out the 2011 convictions of five New Orleans Police Department officers who were found to have shot and killed citizens in the aftermath of Hurricane Katrina and then engaged in a far-reaching coverup to hide that fact. The new trials were ordered because federal prosecutors in both New Orleans and Washington D.C. made anonymous blog comments about the trial on a newspaper website. There’s an incredibly tangled story here, and one that nola.com, the online home for the New Orleans Times-Picayune, has truly done yeoman’s work in untangling. Nola.com also served as the platform for the comments that ultimately dismantled this case. In brief, during the course of the officers’ trials, both the Number 2 and Number 3 lawyers in the New Orleans United States Attorney’s Office repeatedly posted comments on nola.com (under anonymous handles, of course) that were critical of the NOPD, including statements that the NOPD was corrupt and that a defense witness was racist and delusional.

I’m burying the lede a bit here, but you know where I’m going. Veteran high-up prosecutors thought it was a good idea to post anonymously (and critically of the defendants) about an active, incredibly high-profile – arguably the highest-profile ever – case that their office was handling. What went wrong here that this seemed like a good idea? Is it law culture? Internet culture? An unholy intersection of both? I might have been tempted to speculate it was the overpowering allure of power and the sense of immunity that years in a prosecutor’s office might have created until Sam Glover reminded me of a somewhat similar incident he wrote about earlier this year. There, a criminal defense attorney wrote “[l]et the blood flow through the streets. Let the blood run in the police stations” on his blog.

As jarring as that example sounds, it is less problematic and less ultimately offensive to our sense of justice than what happened in New Orleans. As Sam discussed in his post, the call for blood was a moment of letting off steam. Is it a smart way to let off steam? No. Is it something that will likely bring you to the attention of the police when you see them the next day? Probably. Is it an exceedingly ill-advised way to use social media if you’re a lawyer? Definitely. Does it represent a concerted effort to sway public opinion or change the outcome of a trial? Not really.

The defense attorney blogged under his own name and took full responsibility for his statement which, offensive though it was, was clearly hyperbolic. The AUSAs in this instance used the shield of anonymity to get out their message: the police department was corrupt and therefore the police officers were guilty.

There’s a small bit of comfort to be taken in the fact that at least these AUSAs were not people who were directly working on the case…until, of course, it was someone directly working on the case:

[Washington D.C. DOJ trial attorney] Dobinski wasn’t just any federal prosecutor. She was the “taint team leader,” a veteran member of the Civil Rights division tapped to ensure the rights of a police officer — in this case, Bowen — were not violated during the course of the federal investigation. This was a special situation since the officer had provided certain information to a state grand jury that was off-limits in the federal case.[…]

Dobinski’s role was to help federal prosecutors determine what they could permissibly use, and the judge noted he relied on her testimony to allow in certain evidence against Bowen.

So, someone charged with ensuring fairness and transparency in a trial chose to use an anonymous platform to urge a favorable trial outcome. She specifically got involved with partisan trial watchers and used the comment section to ask that they keep posting pro-prosecution comments on nola.com.

The judge’s order in the case can charitably be described as “blistering” and it makes clear that the decision to order a new trial turned entirely on the internet comments. The court raised the questions of whether the conduct broke any professional responsibility rules and whether the prosecutors were permitted to do in cyberspace what they could clearly not do in the “real world.” And – lest you think the comments in question were few in number, or non-explicit, the order will disabuse you of that notion with pages upon pages of the comments. The court also noted that Dobinksi’s conduct – publicly urging other nola.com posters who were calling for convictions to keep posting – may have been the final straw that led to the order for a new trial.

Other posts I’ve done on social media have been a sideways nudge and a wink, a gentle mocking of our profession’s seeming inability to understand that the internet isn’t a magic box where things are invisible and you can do whatever you want. This situation doesn’t really lend itself to gentle mockery. Here, some toxic combination of hubris and ignorance led to real consequences for the families of the shooting victims and for the defendants that didn’t get the fair trial they deserved. As a profession, we owe it to ourselves to create an environment where we remain informed about both technological progress and the implications of the use of those technologies. At this stage in the existence of the internet, there’s simply no reason for any attorney to believe that something that would be impermissible in the “real world” will somehow be acceptable on the internet. There’s also no reason to believe that internet speech is somehow utterly without real-world consequences. Regardless of whether the police officers are convicted in a new trial, this case will serve as the saddest teaching moment imaginable.